BHPFC Resolution No. 10RESOLUTION NO. 10
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE BAYTOWN
HOSPITALITY PUBLIC FACILITIES CORPORATION AUTHORIZING THE
GENERAL MANAGER TO EXECUTE A TECHNICAL SERVICES AGREEMENT
FOR THE HOTEL AT BAYLAND ISLAND; AND PROVIDING FOR THE
EFFECTIVE DATE THEREOF.
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BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE BAYTOWN HOSPITALITY
PUBLIC FACILITIES CORPORATION:
Section 1: That the Board of Directors of the Baytown Hospitality Public Facilities
Corporation hereby authorizes the General Manager tAxecute the Technical Services Agreement for the
hotel at Bayland Island. A copy of said agreement is attached hereto as Exhibit "A," and incorporated
herein for all intents and purposes.
Section 2: This resolution shall take effect immediately from and after its passage by the
Board of Directors of the Baytown Hospitality Public Facilities Corporation.
INTRODUCED, READ and PASSED by the affirmative vote of the Board of Directors of the
Baytown Hospitality Public Facilities Corporation, this the 3rd da of"CAPETILLO,
/} NDONsident
ATT�Si: .t �1
TICIA BRYSCH, As ' to t Secretary
APPROVED AS TO FORM:
KAkEN L. HORNER, Interim General Counsel '�h1�...IN1��
R:\Karen Homer DocumentsTiles.City CouncilffC.Resolution\2020 September 3 TSA Resolution.doc
Exhibit "A"
TECHNICAL SERVICES AGREEMENT
Hyatt Regency Baytown — Houston
By and Among
BAYTOWN HOSPITALITY
PUBLIC FACILITIES CORPORATION,
BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT,
and
HYATT CORPORATION
TECHNICAL SERVICES AGREEMENT
TABLE OF CONTENTS
1.0 SITE................................................................................................................................................................2
2.0 PROJECT......................................................................................................................................................2
3.0 HOTEL STANDARD, CONSTRUCTION, FURNISHING AND EQUIPPING OF THE HOTEL ...... 2
4.0
TERM AND TERMINATION.....................................................................................................................4
5.0
CONSULTANTS...........................................................................................................................................5
6.0
PLANS, SPECIFICATIONS, AND DESIGNS...........................................................................................7
7.0
HYATT APPROVAL....................................................................................................................................8
8.0
TECHNICAL SERVICES..........................................................................................................................11
9.0
FEE...............................................................................................................................................................11
10.0
TRADE NAMES; PROPRIETARY RIGHTS..........................................................................................13
11.0
INSURANCE AND INDEMNIFICATION...............................................................................................13
12.0
EVENTS OF DEFAULT............................................................................................................................15
13.0
DISPUTE RESOLUTION..........................................................................................................................17
14.0
NOTICES.....................................................................................................................................................22
15.0
APPLICABLE LAW/COUNTERPARTS.................................................................................................23
16.0
ASSIGNMENT............................................................................................................................................23
17.0
SEVERABILITY.........................................................................................................................................24
18.0
NO WAIVER...............................................................................................................................................24
19.0
ENTIRE AGREEMENT............................................................................................................................24
20.0
THIRD PARTY BENEFICIARIES...........................................................................................................24
21.0
HEADINGS..................................................................................................................................................24
i
TECHNICAL SERVICES AGREEMENT
(Hyatt Regency Baytown — Houston)
THIS TECHNICAL SERVICES AGREEMENT ("Agreement") is dated and
executed this day of , 2020 ("Effective Date"), by and among
BAYTOWN HOSPITALITY PUBLIC FACILITIES CORPORATION, a nonprofit
corporation created by the City of Baytown, Texas, under Chapter 303, Texas Local Government
Code ("PFC"), the BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT, a municipal
development district established by the City pursuant to Chapter 377 of the Texas Local
Government Code ("Owner", and together with PFC, the "Baytown Parties"), and HYATT
CORPORATION, a Delaware corporation ("Hyatt"), with its principal place of business at 150
North Riverside Plaza, 141h Floor, Chicago, Illinois 60606, United States of America. Each of
the foregoing parties is sometimes referred to herein individually as a "Early" and collectively as
the "Parties". Capitalized terms used in the body of this Agreement and not otherwise defined
shall have the meaning given in Exhibit A attached hereto.
WHEREAS, Owner has an exclusive leasehold interest in the Site pursuant to a ground
lease dated as of January 24, 2019 between Owner, as lessee, and the City of Baytown, Texas as
lessor, pursuant to which Owner has obtained all rights and requisite authorizations to design,
develop, construct, furnish and equip, on the Site the Hotel (as defined below); and
WHEREAS, the Baytown Parties are prepared to finance, plan, build, furnish, decorate
and equip a modern and outstanding full service hotel in accordance with the Hotel Standard (as
defined below), containing approximately 208 guest rooms, food and beverage outlets,
conference and meeting facilities (of approximately 20,400 square feet of meeting rooms and
banquet and pre -function areas), recreational facilities including a fitness center, retail shops and
other components as more fully described in the Preliminary Area Program to be prepared by
Hyatt (the "Preliminary Area Program'), a summary of which is set forth on Exhibit C (the
"Hotel"), to be operated under standards comparable to those prevailing in "Hyatt Regency" (the
"Brand") hotels in the country; and
WHEREAS, Owner and Hyatt intend to enter into, contemporaneously with the
permanent financing of the Hotel, a qualified management agreement ("Hotel Services
Agreement") for management and related services to be provided by Hyatt to Owner with
respect to the Hotel; and
WHEREAS, Hyatt is willing to render the technical services set forth in Exhibit D hereto
(the "Technical Services") in connection with the planning, building, furnishing, equipping and
decorating of the Hotel to enable the Hotel to meet the Hotel Standard and Design Standards; and
WHEREAS, the Baytown Parties desire to retain Hyatt to provide the Technical Services
in connection with the planning, building, furnishing, equipping and decorating of the Hotel and
Hyatt desires to provide such technical advisory services to the Baytown Parties upon the terms
and conditions set forth in this Agreement; and
�; 2017 Hyatt Corporation All rights reserved.
WHEREAS, the Baytown Parties and 11yatt desire to enter into an agreement for Hyatt
to render the aforesaid technical advisory services, upon the terms and conditions hereinafter set
forth.
NOW THEREFORE, the parties hereto covenant and agree as follows:
1.0 SITE.
The Hotel shall be constructed upon a landsite of approximately 5.7 acres owned by the
City of Baytown and leased to PFC, which is located within Baytown, Texas (the "Site"),
as more specifically described and identified on Exhibit B, which is attached hereto and
incorporated by reference herein.
The Baytown Parties acknowledge and agree that the selection of the Site for the Hotel or
the failure of Hyatt to object to the Site, does not constitute an assurance, representation
or warranty by Hyatt of any kind, express or implied, as to the suitability (commercially
or otherwise) of the Site for the Hotel or for any other purpose. Hyatt shall not be
responsible for the failure of the Site approved by Hyatt to meet expectations as to
revenue, income or operational criteria. The Baytown Parties further acknowledge and
agree that approval of the Site for the Hotel is based on the Baytown Parties' own
independent investigation of the suitability of the Site.
2.0 PROJECT.
The project shall be the design and construction of the Hotel and the common areas,
including the related public and support service areas and facilities, located at the Site,
completely furnished and equipped, including all related infrastructure that is used in
conjunction with or is incidental to the use thereof (the "Project').
3.0 HOTEL STANDARD, CONSTRUCTION, FURNISHING AND EQUIPPING OF
THE HOTEL.
3.1. On the Site, the Baytown Parties shall, at their own expense, with all reasonable diligence
build, equip, furnish and decorate the Hotel further described in this Article 3.0, under a
satisfactory plan of financing which will assure the fulfillment of the Baytown Parties'
obligations under this Agreement, and in accordance with the Preliminary Area Program,
the Design Standards and the Hotel Standard. The "Design Standards" means,
collectively, (i) Hyatt's Design Recommendations and Minimum Standards and
Engineering Recommendations and Minimum Standards for newly constructed Brand
hotels and resorts, all of which plans, specifications and designs shall be agreed upon by
the Baytown Parties and Hyatt, (ii) the concept guidelines to design, deliver and
communicate the Brand experience in conformity with Hyatt's Brand Experience Guide
for newly constructed Brand hotels and resorts, and (iii) the most current edition of the
United States National Fire Protection Association ("NFPA") Life Safety Code 101,
NFPA Standard 13 — Standard for the Installation of Sprinkler Systems, and the NFPA -
National Fire Alarm and Signaling Code 72 (or such other standard for sprinkler
2
installation as Hyatt shall approve in its absolute discretion). For the avoidance of doubt,
all references in this Agreement to the "Hotel Standard" for purposes herein only (and
without amending the Hotel Standard definition in the Hotel Services Agreement) shall
mean the Hotel Standard as of the date of this Agreement, as such may have been
modified up to the date of this Agreement by mutual consent of the parties. Any
modification thereto following the date of this Agreement and prior to the Opening Date
shall be implemented only to the extent that such modification will not materially
increase the project cost or cause any material delay in completion of the Hotel. Solely
for purposes of this Agreement, notwithstanding the definition of "Hotel Standard" in the
Hotel Services Agreement, the "Hotel Standard" definition shall include the Preliminary
Area Program and the Design Standards.
3.2. Where the requirements of applicable country and local codes and regulations exceed the
Hotel Standard, the Baytown Parties shall cause the Project to comply with such
applicable country and local codes and regulations. Where the country and local codes
and regulations do not address a particular issue or standard or are less stringent than the
Hotel Standard with respect to such issue or standard, the Hotel Standard shall govern.
3.3 As soon as reasonably practicable and prior to the ordering or purchasing of any
Furnishings and Equipment and Operating Equipment, PFC shall construct a model
double/ queen and a model king guest room with a corridor section (the "Mock-up
Rooms") which shall be subject to approval by Hyatt. PFC may cause the Mock-up
Rooms to be constructed off -Site and shall ensure that the Mock-up Rooms shall have
power supplied to allow Hyatt to test energy systems and, as to bathroom facilities, PFC
and Hyatt shall independently test certain fixtures as specified by Hyatt prior to
implementation in all guest rooms. Hyatt shall review the Mock-up Rooms and provide
the Baytown Parties with a written report setting forth either its approval or disapproval
of the Mock-up Rooms, and in the event of its disapproval, all modifications required for
the Mock-up Room to be subsequently approved by Hyatt. PFC shall not proceed with
the construction or development of the remaining Hotel guest rooms until Hyatt has
approved the Mock-up Rooms. Upon receipt by the Baytown Parties of written notice
from Hyatt that the Mock-up Rooms have been approved, PFC shall construct, furnish
and equip the hotel guest rooms in accordance with the level of fit, finish and quality
appearing in, the general arrangement of, and the decorative items and other furnishings
installed in, the approved Mock-up Rooms. The Mock-up Rooms shall be fully updated
to incorporate all feedback and revisions from Hyatt's final Mock-up Room report and
serve as a record of approved design for construction. Further, the first guest room
constructed on -Site shall comply with, and Hyatt shall review for such compliance, the
construction quality and coordination of all systems and details with all final approved
FF&E from the Mock-up Room installed in place.
3.4. The use of Hotel Standard for the Project shall in no way give rise to any liability on the
part of Hyatt or its Affiliates for any defect or deficiency. the Baytown Parties and their
Affiliates, consultants and other persons using the Hotel Standard must verify through
their own means and consultants (architect, engineers, and other professionals), their
compliance with any law and adequacy for the intended purpose. Hyatt and its Affiliates
3
make no representation whatsoever in such regard. The quality of workmanship, and the
adequacy and suitability of the plans, specifications, and design data for the Project are
the sole responsibility of the Baytown Parties.
3.5. Hyatt and its Affiliates do not and cannot warrant or represent that the items listed in any
documents, plans or reports provided by the Baytown Parties meet all requirements, both
written or interpreted, for local, state or other governmental guidelines for accessibility to
persons with disabilities or local code enforcement for any additional accessibility
requirements. The Baytown Parties shall seek appropriate counsel to ensure such
compliance so that such local, state, or other governmental requirements and the
Preliminary Area Program are met.
3.6. In addition to the furnishing, fixtures and equipment to be included in the Project per the
final plans and specifications for the Project, the Baytown Parties shall, at their sole cost
and expense, cause the Project to include the "spare parts" set forth on Exhibit E attached
hereto, which shall be a part of the Hotel upon the date of the formal opening of the Hotel
(the "Opening Date"). The quantities listed are the minimum acceptable. All quantities
are to be rounded up to the next whole number.
4.0 TERM AND TERMINATION.
4.1. The term of this Agreement shall commence as of the Effective Date and, unless earlier
terminated as provided herein, shall expire upon the Projected Opening Date (the
"Term").
4.2. The Opening Date of the Hotel is currently projected to occur on or before October 15,
2022 (the "Projected Opening Date"). The Opening Date will be the day on which the
certificate of occupancy (or equivalent) is issued, and, other than minor punch list items,
the Hotel is otherwise completed and ready for occupancy by paying guests as agreed
between Hyatt and Owner in accordance with the Hotel Services Agreement. On the
Opening Date of the Hotel, there will be no on -going construction on any portion of the
Project that would adversely affect access to the Hotel, or that would otherwise adversely
limit, restrict, disturb or interfere with operation of the Hotel. Hyatt shall not be required
to render Technical Services beyond the Term. So long as the Baytown Parties are not in
default hereunder, Hyatt shall continue to provide the Technical Services beyond the
Term, the fees payable by Owner for such Technical Services shall be the amount of
$10,000 for each month in which Hyatt continues to provide the Technical Services, plus
any reimbursements as set forth in Section 9.3 (which amount shall be in addition to the
amount set forth in Section 9.1 and any other reimbursements or amounts due and owing
to Hyatt and any of its Affiliates as of the Projected Opening Date).
4.3. The Parties acknowledge that the Projected Opening Date remains subject to change in
light of the impacts of the COVID-19 Pandemic upon the hospitality and construction
industries, including the ability of Owner to finance the Project. Accordingly, the Parties
agree that the Projected Opening Date shall remain subject to deferral on a month -to -
month basis until an indicative investment grade rating for Owner's first -lien and second-
4
lien MDD Bonds (as hereinafter defined) shall have been obtained by Owner. Thereafter,
Owner shall provide Hyatt with notification of any changes to the Projected Opening
Date as soon as Owner becomes aware of any such changes. In the event of a material
delay of the Projected Opening Date, Hyatt shall have the right to evaluate the
Preliminary Area Program to ensure the Project's program continues to meet the Hotel
Standard then in effect.
4.4. The Parties acknowledge and agree that upon a termination of the Hotel Services
Agreement after the execution thereof, Hyatt shall have the right to terminate this
Agreement immediately upon written notice to the Baytown Parties, and in any such
event, Hyatt shall have no liability toward the Baytown Parties on account of early
termination of this Agreement.
4.5. If this Agreement shall be terminated at any time for any reason other than a final and
non -appealable determination pursuant to Article 13.0 that Hyatt is in default of its
obligations hereunder, any outstanding payments due to Hyatt under the terms of this
Agreement shall be immediately due and payable upon such termination.
5.0 CONSULTANTS.
5.1. PFC shall engage and retain at its own expense (a) all of the architects and design
consultants ("Consultants") enumerated in section 1.3(a) of Exhibit D to this Agreement,
each of whom shall be agreed upon by PFC and Hyatt, and (b) other design consultants,
contractors and specialists that may be required for any aspect of the Project enumerated
in section 1.3(b) of Exhibit D to this Agreement, as shall be necessary and appropriate.
Hyatt shall endeavor to nominate to PFC each category of Consultants (with the
exception of structural engineers) enumerated in section 1.3 of Exhibit D. Except for the
Existing Consultants (defined below), to the extent that PFC has retained or is currently
utilizing any consultants, contractors, or other design specialists with respect to the
Project, PFC agrees promptly after the date hereof or at Hyatt's direction to replace them
with those enumerated on Exhibit D, and which have been agreed to by Hyatt, if the work
quality or the performance of any such consultants, contractors, or other design
specialists does not meet the Hotel Standard, or is otherwise deemed unacceptable to
Hyatt in its reasonable discretion. Hyatt acknowledges and agrees that, as of the date of
this Agreement, the following Consultants have been approved by Hyatt (collectively the
"Existing Consultants"):
Design -Builder:
DPR Construction, Houston, TX
Architect:
BOKA Powell, LLC, Dallas, TX
Interior Designer:
Looney & Associates, Dallas, TX
Structural Engineers:
Thornton Tomasetti, Dallas, TX
Digital Building Components, Phoenix, AZ
MEP Engineer:
Blum Consulting Engineers, Dallas, TX
Civil Engineer:
Kimley Horn, Frisco, TX
Landscape Architect:
Studio Outside, Dallas, TX
5
Geotechnical Engineer: Professional Services Industries, Inc., Houston, TX
Lighting Design:
Lang Lighting, Dallas, TX
AudioNisual:
Johnson Controls, Inc., Houston, TX
Graphics:
Janke Design, Austin, TX
Fire. Life Safety:
Jensen Hughes, Plano, TX
FF&E Purchasing Agent:
Benjamin West, Dallas, TX
5.2. In addition to the Consultants described in Section 5.1, PFC agrees to engage and retain
at its own expense, Garfield Public Private LLC, as (i) the project manager ("Project
Manager") and (ii) the on -Site Furnishings and Equipment Manager (the "FFE
Manager'), who shall assist PFC and its Consultants and contractors to meet the Hotel
Standard.
The FFE Manager shall be an independent contractor of PFC and shall provide monthly
construction and photographic reports to Hyatt and PFC in such forms as Hyatt or PFC
may reasonably require. PFC will be required to pay the FFE Manager's salary and
costs.
Hyatt shall liaise with the Project Manager and FFE Manager for on -site progress,
scheduling and the inspection sequencing and the preparation for the handover of the
Hotel. PFC shall give the Project Manager and FFE Manager appropriate authority to
direct the Consultants and contractors of PFC to ensure that the Hotel Standard is met in
the construction, furnishing and equipping of the Hotel.
5.3. Hyatt shall not be liable for any errors or omissions in the plans and specifications or
designs for the Hotel, or for any misfeasance or malfeasance by any specialists or
consultant retained by PFC, whether or not upon the recommendation of Hyatt, or for any
defects in design, manufacture, furnishings or construction, or for any operational
deficiencies in the design or construction of the Hotel (including, without limitation, life
safety systems and structural integrity), or any failure of any such plans or specifications
to conform to applicable law, it being the intention of the Parties that in rendering its
Technical Services and assistance to the Baytown Parties, Hyatt shall be functioning
solely as a consultant sharing with the Baytown Parties the benefit of its prior experience
in the management and operation of first-class hotels and its knowledge of guest
preferences and market demands.
5.4. PFC shall cause all Consultants and contractors to prepare full and adequate plans,
layouts, specifications, drawings and designs, both interior and exterior, as provided in
Article 6.0 below, and models, colored renderings and material boards of quality suitable
for advertising and promotion, with respect to the Hotel, except to the extent such are to
be provided by Hyatt as part of its Technical Services. The contracts with all such
Consultants and contractors shall require that, where appropriate, such Consultants and
contractors shall provide, at PFC's cost and expense, adequate training to the personnel
of the Hotel in the use and maintenance of the building and all systems and installations
therein and shall furnish to the Baytown Parties and Hyatt, at the conclusion of the
a
Project, 3 full sets of "as -built drawings" (hard copies and in electronic format) as
executed, and catalog cut sheets, operating manuals and instructions.
5.5. The Baytown Parties shall cause and ensure that its Consultants and contractors cooperate
with Hyatt in every respect in order that llyatt is able to fulfill its responsibilities under
this Agreement. The Baytown Parties shall appoint a representative ("Owner's
Representative") in writing delivered to Hyatt, and shall inform Hyatt in writing of any
change in such Owner's Representative. Hyatt may conclusively rely on any instructions
or approvals given to it by Owner's Representative as being the instructions or approvals
of the Baytown Parties.
5.6. PFC shall manage all aspects of the construction of the Project. In performing these
responsibilities, PFC, either on its own or through its Consultants or contractors, shall:
a) Cause qualified and professionally licensed third party consultants expert in the
commissioning of Fire and Life Safety and MEP systems to test, balance and
commission such systems, and to issue written reports to PFC and Hyatt
certifying that they have tested, balanced and commissioned such systems and
that such systems are fully operational and ready for use (such reports to be
received by Hyatt prior to final review by Hyatt of the Project and turnover of the
Hotel in accordance with this Agreement and the Hotel Services Agreement).
b) Provide Hyatt with certification from a qualified, professionally licensed
independent structural engineer or firm, certifying that the Hotel building as
designed and constructed meets or exceeds all applicable structural requirements,
including without limitation seismic, wind, storm and flood, and all other
applicable Legal Requirements (as defined in Section 7.1 below).
c) Ensure that PFC's Consultants and contractors conduct a final work list and punch
list survey of the Project and correct all defects prior to requesting final review
and approval of the Project by Hyatt. Upon correction of all defects and
completion of all remaining work items identified on the punch list, PFC shall
provide Hyatt with a copy of the punch list signed by the Consultants and
contractors reflecting that such work has been "satisfactorily completed" and shall
request a final review of the Project by Hyatt.
5.7. This Agreement does not create a fiduciary relationship between the parties hereto, and
Hyatt is and shall, at all times, remain an independent contractor. Nothing in this
Agreement is intended to constitute any Party an agent, legal representative, subsidiary,
joint venturer, partner, employee or servant of the other Party for any purpose. The
Parties agree that no Party will make any contrary assertion, claim, or counterclaim in
any action, suit, arbitration or other legal proceeding.
6.0 PLANS, SPECIFICATIONS, AND DESIGNS.
7
6.1. All plans for the Hotel must be prepared in English and must be consistent with the
Preliminary Area Program and in conformity with the Hotel Standard. Any changes in or
departures from the agreed plans, or such other items shall be approved by Hyatt, unless
such changes are so minor as to have no impact on the quality, character and operation of
the Hotel (and in the case of such minor changes, no approval by Hyatt shall be
necessary). Hyatt may withhold its consent to any and all departures from the approved
concepts, plans, layout specifications, drawings or designs, or such other items to be
approved by Hyatt, in its sole discretion, if Hyatt determines that such departure will
cause the Hotel to fail to adhere to the Hotel Standard.
6.2. To the extent that any of the foregoing matters in this Article 6.0 involves compliance
with the Hotel Standard, PFC shall cause its Consultants and contractors to implement the
direction provided by Hyatt during the review process in order to ensure that the Project
complies with the Hotel Standard.
6.3. All materials provided by Hyatt, with respect to the Hotel Standard, the Preliminary Area
Program, and in connection with the rendition of Technical Services hereunder are, and at
all times hereunder and hereafter, shall remain the exclusive intellectual property of Hyatt
(and Hyatt shall have full ownership thereof), it being understood and agreed by the
Baytown Parties that such materials are being furnished for the use of the Baytown
Parties as a licensee solely in connection with the Technical Services. The Baytown
Parties may make such copies of materials as necessary in connection with the
completion of the Hotel. The Baytown Parties shall not provide any copies to any third
party without Hyatt's prior written consent, unless otherwise required by law. The Parties
acknowledge that this Agreement is subject to the Public Information Act, pursuant to
Section 303.044 of the Texas Local Government Code. Upon any early termination of
this Agreement for any reason whatsoever, all such written materials (or copies thereof)
shall be returned to llyatt, or at the discretion of Hyatt, destroyed. If destroyed, at the
request of Hyatt, the Baytown Parties shall provide a written certification, certifying that
such written materials have been destroyed and specifying the date of such destruction.
7.0 ITYATT APPROVAL.
7.1. The contracts with the aforesaid Consultants and contractors shall provide that all
concepts, plans, specifications and designs, and any changes thereto or departures
therefrom subsequently made, shall be submitted for approval to PFC and Hyatt prior to
implementation, for purposes of ensuring conformity with the Hotel Standard. llyatt
acknowledges that the Baytown Parties have submitted an initial cost budget for the
Project. The Baytown Parties and Hyatt shall discuss in good faith and agree upon the
cost budget for the Project (the "Project Budget"). PFC and Hyatt shall discuss and
agree upon the concepts, plans, specifications and designs, and cooperate with each other
to ensure that (a) the concepts, plans specifications and designs comply with the Hotel
Standard, (b) due regard is given for the Project Budget and (c) due regard is also given
for PFC's Project completion schedule attached hereto as Exhibit F (the "Development
Timetable"). PFC also agrees to notify Hyatt with regard to any change in the Project
Budget, and no such change may adversely affect the Hotel Standard. The Baytown
Parties acknowledge that Hyatt's design and construction reviews performed pursuant to
this Agreement shall not consist of a Peer Review (as defined below), but rather are
intended only to assist the Baytown Parties and its Consultants in complying with their
obligations. Such reviews do not relieve the Baytown Parties or its Consultants of their
responsibility to determine the completeness and coordination of their documents and to
ensure that the design and construction of the Project comply with applicable Legal
Requirements.
The term "Legal Requirements" as used in this Agreement, shall mean any provision of
law, including, without limitation, any statute, ordinance, regulation, rule, award or order
of any governmental agency or tribunal having jurisdiction over the Hotel or the Project,
its operations or the construction and/or development thereof.
The term "Peer Review" as used in herein shall mean a professional review of drawings,
calculations, samples, measurements, and the like to determine the design performance of
the various systems and building components, the accuracy of the information, the
coordination and conflict resolution between the various elements, the identification of
errors and omissions, compliance of the information with Legal Requirements,
compliance of the means and methods of intended installation and construction with
safety requirements, and the like. The Peer Review is conducted by third party
professional consultants retained by PFC to review the Consultants' work.
7.2. Wherever in this Agreement or elsewhere that Hyatt is required to give its approval of
plans and designs or specifications, no such approval shall imply or be deemed to
constitute an opinion by Hyatt on, nor impose upon Hyatt any responsibility for, the
design or construction of building elements (including, but not limited to, means,
methods, techniques, sequences, procedures for construction, structural integrity or fire
and life safety requirements or the adequacy of budgets), compliance with applicable
Legal Requirements (including but not limited to environmental, construction density,
labor or any other kind of regulations), or the obtaining of any necessary licenses, permits
or authorizations, all of which shall be the exclusive responsibility of PFC, to be obtained
and complied with at the cost and expense of PFC.
7.3. The scope of Hyatt's review and approval of plans, designs and specifications is limited
solely to brand adequacy and relationship of spaces, quality standards, and the aesthetics
of the building for use as a Brand hotel. All reviews and approval by Hyatt under the
terms of this Agreement are for the sole and exclusive benefit of the Baytown Parties and
Hyatt and no other person or party shall have the right to rely on any such reviews or
approval by Hyatt. Notwithstanding Hyatt's right of review and approval, the Baytown
Parties and Hyatt acknowledge and agree that none of the Consultants or other
contractors of the Baytown Parties will be agents or employees of Hyatt.
7.4. Upon completion of the Project, PFC shall give Hyatt a written certificate or opinion
from Broaddus & Associates, PFC's Consulting Architect/Engineer, or other architect,
licensed professional engineer, or recognized expert consultant selected by PFC, stating
that the Hotel conforms to all applicable Legal Requirements (including, without
Z
limitation, requirements governing public accommodations for persons with disabilities).
At Hyatt's request, PFC must give Hyatt copies of all other certificates of architects,
contractors, engineers, and designers and such other similar verifications and information
Hyatt reasonably requests.
7.5. "Approve" and "approval" each mean approved in writing, including subsequent written
confirmation of previous verbal approval. Wherever in this Agreement or elsewhere
Hyatt is required to give its approval or consent on plans, specifications or any other item
hereunder, Hyatt shall give the Baytown Parties, within 15 business days from dated
receipt in Hyatt's Chicago office or Divisional Offices, as directed by Hyatt, of the items
to be approved, its approval or consent or its disapproval or non -consent. All items
required to be delivered in hard copy format pursuant to Exhibit D shall be deemed
received by Hyatt only upon receipt of all items in hard copy form. If Hyatt fails to give
such a notice to the Baytown Parties within the agreed -upon period, the Baytown Parties
may treat Hyatt's failure to give such notice as constituting consent or approval by Hyatt.
The approval or consent by Hyatt hereunder shall be irrevocable and Hyatt shall not
cancel, modify or change its approval or consent. Notwithstanding anything contained
herein to the contrary, any deviations from the Hotel Standard in the plans (at each stage
and submittal) must be specifically identified by the Baytown Parties in writing when
submitting to Hyatt and shall be deemed disapproved unless expressly approved by Hyatt
in writing. Hyatt shall at all times during the course of this Project adhere to the Project
schedule developed by the project architect and approved by the Baytown Parties.
Drawings and specifications approved by the Baytown Parties and submitted by the
architect to Hyatt for inspection and comment shall be deemed to be approved by Hyatt
and to be incorporated in the design documents unless objection or recommendation is
made by Hyatt within 15 business days of the receipt of the drawings and specifications
with a clear and specific notation stating the outside response date. Upon substantial
completion of the Hotel, Hyatt shall have the right to review the list of deficiencies and
"punch -list" items that require correction. All deliverables of the Baytown Parties set
forth in Section 11 of Exhibit D (the "Owner Deliverables") shall be prepared and
submitted for approval by Hyatt in accordance with a schedule to be mutually agreed by
the Baytown Parties and Hyatt, and such Owner Deliverables shall directed to Hyatt at
the following address:
c/o Hyatt Corporation
Americas Design Services
150 North Riverside Plaza
Chicago, IL 60606
Email: Americas. Design. Services()-)hyatt.com
7.6. Hyatt shall appoint a representative ("Hyatt's Representative") in writing delivered to
the Baytown Parties, and shall inform the Baytown Parties in writing of any change in
such Hyatt's Representative. The Baytown Parties may conclusively rely on any
instructions or approval given to it by Hyatt's Representative as being the instructions or
approval of Hyatt.
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7.7. Notwithstanding any other term or provision of this Agreement, the approval of any item
by Hyatt in accordance with this Agreement shall not constitute a waiver by Hyatt of its
right to insist upon strict compliance by the Baytown Parties with any of the other terms
of this Agreement, or prevent Hyatt from requiring the Baytown Parties to alter, remove,
replace or repair any other item which was not previously approved by Hyatt and which
does not comply with the requirements of this Agreement, the Hotel Standard or any
Legal Requirements.
8.0 TECHNICAL SERVICES.
8.1. Hyatt shall provide to the Baytown Parties, from the principal place of business of Hyatt,
the Technical Services set forth on Exhibit D attached hereto, and all standards and
criteria, design statement and other written material strictly in conformity with the Hotel
Standard and the Preliminary Area Program. For the avoidance of doubt, Technical
Services shall not include any services not expressly set forth on Exhibit D provided by
Hyatt IT Support Services personnel except that, for the avoidance of doubt, (i) Hyatt
shall coordinate the review and support services of the Hyatt IT Support Services
personnel and (ii) the costs and travel expenses related to the coordination of such
services shall be included in the pre -opening budget for the Hotel and not included in the
Technical Services Fee set forth in Section 9.1 hereof. Hyatt shall provide the Technical
Services on a schedule as mutually agreed upon between Hyatt and the Baytown Parties;
provided, however that provision of the Technical Services shall not commence earlier
than the receipt by Hyatt of the initial payment as set forth in Section 9.1.
8.2. At Hyatt's request, the Baytown Parties must give Hyatt copies of all other certificates of
architects, contractors, engineers, and designers and such other similar verifications and
information Hyatt reasonably requests. At the request of Hyatt, the Baytown Parties shall
make available to Hyatt copies of all reports, studies, draw requests, schedules and other
documents and materials of the Baytown Parties, its contractors, suppliers and
consultants relating to the design, construction and furnishing of the Hotel.
8.3. In rendering the Technical Services, Hyatt shall have the right, at its sole discretion, to
delegate to, or be assisted by third parties, and, accordingly, some or all of such
Technical Services which Hyatt undertakes to provide under this Agreement may be
provided by such third parties.
8.4. Hyatt shall have the right to visit the Site as often as reasonably necessary to ensure the
Project is being developed, constructed and equipped in accordance with the Hotel
Standard and in accordance with the Development Timetable. Hyatt shall provide the
Baytown Parties with 24 hours' advance notice of any visits to be made to the Site by
employees of Hyatt in performance of services hereunder.
9.0 FEE.
9.1. For the Technical Services to be provided by Hyatt, Owner shall pay Hyatt a total fee (the
"Technical Services Fee") in the fixed amount of US$250,000, plus applicable taxes
thereon, which fee shall be paid by Owner in accordance with the following schedule:
(i) $50,000 payable on the Effective Date;
(ii) $50,000 payable on the 90th day following the Effective Date;
(iii) $100,000 payable on the date of the issuance of the bonds issued by
Owner to finance the Project (the "NIDD Bonds"); and
(iv) $50,000 payable on the 90th day following the date of the issuance of the
MDD Bonds.
The portion of the Technical Services Fee described in subparagraphs (iii) and (iv) above
shall be expressly conditioned upon Owner's issuance of the MDD Bonds, which is
subject to events and circumstances outside of its control. If for any reason the MDD
Bonds are not issued on or before December 31, 2021, then this Agreement may be
terminated at the election of (i) Owner by giving written notice to Hyatt at any time
thereafter, without any further liability of Owner to pay the remaining portion of the
Technical Services Fee to Hyatt or (ii) Hyatt by giving written notice to the Baytown
Parties at any time thereafter.
9.2. The amount payable by Owner to Hyatt under Section 9.1 as the Technical Services Fee
is based upon the Opening Date of the Hotel occurring on or before the Projected
Opening Date. If the Opening Date of the Hotel fails to occur on or before the Projected
Opening Date (as it may be extended pursuant to Section 4.3), Owner shall pay Hyatt
additional fees for the extension of the provision of Technical Services as described in
Rertinn d I
9.3. The fees set forth in Section 9.1 and Section 9.2 shall be inclusive of all out-of-pocket
expenses incurred by the Hyatt design team in rendering such Technical Services,
including, without limitation, air transportation (business), food and lodging and other
customary travel expenses, courier services and reproductions of plans. In respect of the
provision of the Technical Services, there shall be no obligation of the Baytown Parties to
reimburse Hyatt for such costs. For the avoidance of doubt, the fees and expenses payable
to all the Consultants enumerated in section 1.3 of Exhibit D, as described in Section 5.1
above (including, without limitation, the salary and expenses of the FFE Manager
engaged by PFC in connection with the planning, building, furnishing, equipping and
decorating of the Hotel, and any and all costs and expenses incurred by Hyatt's IT
Support Services personnel), shall be paid directly by PFC independent of the Technical
Services Fee.
9.4. The Technical Services Fee shall be payable in US Dollars without reduction for any
bank charges or any other charges, by wire transfer to Hyatt's principal office, or to such
other place as Hyatt may, from time to time, designate. If any payment of the Technical
Services Fee due under this Agreement is not received on the due date thereof, the
amount of such payment shall accrue interest from the due date to the date of actual
payment at a rate equal to the lesser of (i) 1% point per month, or (ii) the maximum
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amount permitted under Applicable Law, including Texas Government Code Section
2251.025. The application of such interest charge by Hyatt shall not affect any other
remedy available to Hyatt hereunder as a result of such non-payment.
10.0 TRADE NAMES; PROPRIETARY RIGHTS.
10.1. Hyatt and the Baytown Parties acknowledge that the Hotel will be known and designated
as the "Hyatt Regency Baytown Houston", except as may otherwise be mutually
agreed by the Baytown Parties and Hyatt. It is recognized and agreed that the names
"Hyatt," "Hyatt Centric," "Hyatt Place," "Hyatt House," "Grand Hyatt," "Park Hyatt,"
"Hyatt Regency," "Unbound Collection by Hyatt," "Hyatt Ziva," "Hyatt Zilara,"
"Miraval", "Andaz," "Exhale," "World of Hyatt," "Thompson," "tommie,"
"Destination," "Joffe de Vivre," "JdV", "Alila," when used alone or in conjunction with
some other word or words, are the exclusive property of Hyatt. Accordingly, each of the
Baytown Parties covenants that neither of the Baytown Parties nor any person, firm or
corporation claiming by or through the Baytown Parties, shall have the right to use the
names "Hyatt," "Hyatt Centric," "Hyatt Place," "Grand Hyatt," "Park Hyatt," "Hyatt
Regency," "Hyatt House," "Hyatt Ziva," "Hyatt Zilara," "Unbound Collection by Hyatt,"
"Miraval," "Andaz," "Exhale," "World of Hyatt," "Thompson," "tommie,"
"Destination," "Joffe de Vivre," "JdV," "Alila," or any other name used in the operation
of the hotels operated or managed by Hyatt or any Affiliate thereof, either alone or in
conjunction with any other word or words, in the operation or promotion of the Hotel
except as otherwise expressly set forth herein, or in the Hotel Services Agreement. In the
event of any breach of this covenant by either of the Baytown Parties, Hyatt shall be
entitled to seek damages or immediate injunctive relief (without the requirement of any
posting of a bond), and to such other legal rights or remedies, whether pursuant to
arbitration or by direct legal proceedings, in Hyatt's sole discretion, and this provision
shall be deemed to survive the expiration or earlier termination of this Agreement.
10.2. In connection with the foregoing, the Baytown Parties shall not undertake any
promotional nor marketing activities of any kinds of securities or participation interests,
in ownership or trust or otherwise, or in the sale of any real estate interest involving the
Hotel or any interest therein, which mentions the name or logo "Hyatt" or any derivative
thereof, unless first approved, in writing, by Hyatt. Notwithstanding the foregoing to the
contrary, Hyatt agrees to the inclusion of a general description of Hyatt, the Hotel, this
Agreement and the Hotel Services Agreement (the "Hyatt Disclosure Information"), in
a private offering memorandum for the marketing and sale of the bonds to be issued to
finance the Hotel in order to comply with applicable federal securities laws; provided,
however, that such Hyatt Disclosure Information shall be subject to the prior review and
approval of Hyatt, such approval not to be unreasonably withheld, except that Hyatt's
approval as it pertains to the inclusion of any Hyatt Trademarks shall be in Hyatt's sole
discretion.
11.0 INSURANCE AND INDEMNIFICATION.
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11.1. PFC shall, at its expense, at all times during the period of construction, furnishing and
equipping of the Hotel, procure and maintain adequate public liability and indemnity and
property and such other customary insurance from financially responsible insurance
companies rated A or higher by AM Best, fully protecting the Baytown Parties and Hyatt
against loss or damage arising in connection with the preparation, construction,
furnishing and equipping and any pre -opening activities of the Hotel. PFC shall further,
at its expense or as an obligation and expense of its general contractor, at all times from
the commencement of the construction of the Hotel, procure and maintain adequate
insurance:
A. for the full replacement value of the Hotel from financially responsible insurance
companies of repute against all risk of physical loss or damage to the Hotel and its
contents from, including, but not limited to, fire, boiler explosion, and such other
risks and casualties for which insurance is customarily provided for hotels of
similar character,
B. workmen's compensation, employers' liability or other such insurance as may be
required under applicable laws or which Hyatt shall deem advisable,
C. so-called "builder's risk" coverage for the completed value of the Hotel during the
construction of the Hotel, and
D. and such other perils as Hyatt deems necessary in its reasonable discretion.
All policies shall provide that PFC (and, at Owner's request, any mortgagee) be named
insureds and that Hyatt, llyatt Hotels Corporation, and its subsidiaries and any other
affiliates to be named by Hyatt, be named as additional insureds thereby, as their interests
may, from time to time, appear. All policies shall provide that the insurance company
agrees to waive any rights of subrogation against Hyatt, Hyatt Hotels Corporation, and its
subsidiaries and any other affiliates to be named by Hyatt.
PFC shall, upon request, furnish to Myatt satisfactory evidence of all insurance
maintained by PFC pursuant to this Section 11.1.
11.2. Subject to Section 12.7 hereof, Owner shall indemnify, defend and hold Ilyatt and its
Affiliates (and their respective officers, directors, agents, and employees) free and
harmless of and from any and all claims, to the extent they arise out of or in any way
relate to the Hotel or to the performance by Hyatt of its duties hereunder or to the
termination of this Agreement, except to the extent such claims arise out of or are
attributable to Hyatt's Grossly Negligent Acts or Willful Misconduct; provided, however,
Owner shall have no liability hereunder to the extent Flyatt or its Affiliates is reimbursed
for its loss from the proceeds of insurance maintained hereunder or under the Hotel
Services Agreement, and, with respect to such coverage, Hyatt agrees that it will (and
that its Affiliates will), in good faith, pursue its available insurance recoveries prior to
making demand on Owner for indemnity.
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For purposes of this Section 11.2, the following terms have the meanings indicated
below.
"Grossly Negligent Acts" means the failure by a Party to exercise even a minimum
amount of care in a way that shows recklessness in the performance of its duties under
this Agreement or any other Hyatt Agreement. The parties to this Agreement
contractually agree that this definition controls their relationship irrespective of any
definition of such term or any absence in distinction between negligence and gross
negligence under applicable law.
"Willful Misconduct" means any act or omission by a Party that constitutes intentional,
deliberate and/or conscious disregard in the performance of its duties under this
Agreement, including fraud and willful concealment. The parties to this Agreement
contractually agree that this definition controls their relationship irrespective of any
definition of such term under applicable law.
11.3. Section 11.2 shall survive the termination or expiration of this Agreement, subject to any
applicable statutes of limitation.
12.0 EVENTS OF DEFAULT.
12.1. The following shall constitute events of default:
A. The failure of the Baytown Parties to make any payment to Hyatt provided for
herein when due, and the continuance of any such default for a period of 15
calendar days after notice of said failure;
B. The filing of a voluntary petition in bankruptcy or insolvency or a petition for
reorganization under any bankruptcy law by any Party or any voluntary event of
liquidation or dissolution of a Party; or the consent by any Party to an
arrangement or composition for the benefit of creditors;
C. The consent to an involuntary petition in bankruptcy or the failure to vacate
within 60 days from the date of entry thereof of any order approving an
involuntary petition by any Party;
D. The appointment of a receiver for all or any substantial portion of the property of
any Party;
E. The entering of an order, judgment or decree by any court of competent
jurisdiction, on the application of a creditor, adjudicating any Party as bankrupt or
insolvent or approving a petition seeking reorganization or appointing a receiver,
trustee or liquidator of all or a substantial part of such Party's assets, and such
order, judgment or decree continuing unstayed and in effect for a period of 120
consecutive days; or
a
F. The occurrence of a material breach (which, but for the passage of time would
constitute an event of default) under, or the failure by any Party to perform, keep
or fulfill any of the other material covenants, undertakings, obligations or
conditions set forth in this Agreement or the Hotel Services Agreement, and the
continuance of any such default for a period of 30 calendar days after notice of
said failure.
12.2. In any such event of default, the non -defaulting party shall not terminate this Agreement
without first giving to the defaulting party notice of intention to terminate this Agreement
after the expiration of a period of 30 calendar days from the date of such notice. The non -
defaulting party shall not be permitted to terminate this Agreement if upon receipt of such
notice, the defaulting party shall promptly cure the default within such 30 day period, or
when such default is not susceptible of being cured within 30 calendar days, if the
defaulting party shall exercise diligent efforts to cure such default with all due diligence,
then such non -defaulting party shall have such reasonable time as shall be required for
the defaulting party to cure such default.
12.3. Subject to Section 12.6 herein, the rights granted hereunder shall not be in substitution
for, but shall be in addition to any and all rights and remedies for breach of contract
granted by applicable provisions of law.
12.4. Notwithstanding the foregoing, no Party shall be deemed to be in default under this
Agreement if a bona fide dispute with respect to any of the foregoing events of default
has arisen between the Parties and such dispute has been submitted to arbitration.
12.5. Except as otherwise provided in this Agreement, should any party hereto be delayed in or
prevented, in whole or in part, from performing any obligation or condition hereunder
with the exception of the payment of money, or from exercising its rights by reason or as
a result of any force majeure, such party shall be excused from performing such
obligations or conditions for a period of time equivalent to the period of delay caused by
the event of force majeure and for 30 days thereafter. Referring to the exception set forth
in the preceding sentence for obligations involving the payment of money, if there occurs
a force majeure that directly prevents Owner from making payment, such as, a collapse of
the banking communication systems, Hyatt may terminate this Agreement on 10 days'
notice to Owner if Owner is unable to make the payment within the 15-day period
prescribed under subsection A of Section 12.1 above. The term "force majeure" as used
in this Agreement means acts of God, acts of government, acts of terrorism, sabotage,
transportation failure, strikes, lockouts, or other industrial disturbances, acts of a public
enemy, blockades, wars, insurrections or riots, epidemics, landslides, fires, storms,
floods, explosions, or other similar causes beyond the control of such party.
12.6. The Parties hereby agree that no Party shall be liable to the other for punitive, incidental,
exemplary, statutory, treble or consequential damages as a result of any default of this
Agreement. As additional consideration for and as an essential inducement to Hyatt to
enter into this Agreement, and except as specifically set forth in the penultimate sentence
of this paragraph, Hyatt's liability for payment and satisfaction of any monetary claim,
iL
damages, costs or expenses (including, without limitation, attorneys' fees awarded under
this Agreement) arising from or related to any defaults described in this Agreement
(altogether, "Hyatt Liabilities") shall be limited to a maximum amount equal to the
excess of (i) the sum of all Technical Services Fees paid to Hyatt preceding the
termination date, over (ii) the aggregate amount of all prior Hyatt Liabilities paid by
Hyatt.
12.7. The Parties hereby acknowledge that upon the issuance of the MDD Bonds (such
issuance date, the "Bonds Issuance Date"), certain funds and accounts of Owner shall be
established with respect to the financing, construction and operation of the Hotel, into
which the proceeds of the MDD Bonds, as well as the revenues of the Hotel shall be
deposited and held, and that such funds and accounts shall be the sole source of payment
of any obligations of the Baytown Parties hereunder from and after the Bonds Issuance
Date. Notwithstanding any other provision contained herein to the contrary, any and all
liabilities of the Baytown Parties arising under this Agreement from and after the Bonds
Issuance Date shall be limited to those sources of funds available for the payment thereof
in accordance with the terms of the Hotel Services Agreement and the financing
documents for the MDD Bonds. For the avoidance of doubt, none of the faith, credit or
taxing power of the City shall be pledged or otherwise be available for the payment of
any liabilities of the Baytown Parties accruing hereunder. Notwithstanding the
foregoing, and for the avoidance of doubt, during the period prior to the Bonds Issuance
Date, the Baytown Parties shall be liable to Hyatt for (i) the payment of the Technical
Services Fee in accordance with Section 9.1 and (ii) any other liabilities or payments of
the Baytown Parties to Hyatt arising under this Agreement, including without limitation
in accordance with the Baytown Parties' indemnification obligations pursuant to Section
11.2, provided that the Baytown Parties' liability for payment and satisfaction of any
monetary claim, damages, costs or expenses arising prior to the Bonds Issuance Date
pursuant to this clause (ii) shall be limited to a maximum amount equal to One Hundred
Thousand Dollars ($100,000).
13.0 DISPUTE RESOLUTION.
13.1. General.
a) Except as provided in Section 10.1 hereof, The Parties shall resolve all disputes
arising out of or relating to this Agreement and the Parties' relationship to each
other in accordance with this Article 13.0.
b) Except as otherwise required by Applicable Law, the Parties agree that: (i) the
matters related to any dispute, including the nature of any dispute, status or terms
of any negotiations, proposed or final settlements, agreements, resolutions,
awards or the status of any arbitration (or other proceeding authorized under
Section 13.1(c) below), and all statements, reports, projections and other
information relating thereto (collectively, "Dispute Information") are strictly
confidential, and (ii) each Party shall ensure that such Dispute Information is not
disclosed to the press or to any other third person or entity without the prior
17
written consent of the other Party. The Parties shall reasonably cooperate with
one another regarding the content, timing and other aspects of all public
statements, whether written or oral and no matter how disseminated, regarding the
Dispute Information, including whether such statements will be made.
c) Notwithstanding the foregoing, a Party may commence litigation or other legal
proceedings without seeking alternative dispute resolution for (i) any temporary
injunctive relief pending and in aid of resolution of a dispute in accordance with
Sections 10.1, 13.2 or 13.3 (as applicable); or (ii) the enforcement of any Expert
or arbitration award or the dispute resolution provisions in this Article 13.0 but
only if a Party fails to abide by any decision or order reached by the Expert or
arbitrator(s) as set forth in Section 13.3 below within the time periods set forth in
such award. In furtherance of the foregoing, each Party acknowledges and agrees
that (x) a Party shall have the right to obtain injunctive relief without bond, but
upon notice required under Applicable Law (an "Enjoining Party") and (y) such
injunctive relief shall be in addition to such other relief as may be available to an
Enjoining Party or its Affiliates at law or in equity. Any action by any Party
described in this Section 13.1(c) shall be brought in a court located in the State of
Texas. The Parties consent to the jurisdiction of such courts and waive any right
to have such action transferred from such courts on the grounds of improper
venue or inconvenient forum. The Parties also waive trial by jury in the event of
any such action, and the Parties agree that service of process for purposes of any
such action need not be personally served or served within the State of Illinois,
but may be served with the same effect as if the Party were served within the State
of Illinois, by notice in the manner prescribed for notices under this Agreement
pursuant to Article 14.0 below.
13.2. Expert Determination. Where this Agreement expressly provides for reference to
determination of a matter by Expert determination:
a) The Expert shall be appointed by the Parties jointly, provided that in the absence
of an agreement on a joint appointment, the independent Expert shall be
appointed by the Court of Arbitration of the International Chamber of Commerce.
In all cases, the independent "Expert" shall be a third party: (i) having not less
than 10 years' experience in the hospitality industry; (ii) who is a member in good
standing in the International Society of Hospitality Consultants; (iii) not having
had any direct relationship with any Party or its Affiliates in the preceding 24
month period, except to the extent disclosed and accepted by the other Party; (iv)
having demonstrated knowledge of the local hotel market; and (v) having
demonstrated knowledge of the operation and marketing of hotels in the an upper
up -scale segment, full service.
b) The Expert shall:
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(i) Give the Baytown Parties and Hyatt notice in writing of his or her
appointment and invite Baytown Parties and Hyatt to submit to the Expert
within 4 weeks their respective proposals and representations;
(ii) Be instructed to resolve any dispute with strict reference to all applicable
provisions of this Agreement and/or any other applicable Hyatt Agreement
and
(iii) Issue a written opinion with respect to his or her determination within 8
weeks after receipt of all submissions contemplated in Section 13.2(b)(i),
which determination shall be final and binding on the Baytown Parties and
Hyatt unless the decision of the Expert shall be manifestly contrary to the
express provisions of this Agreement, in which event any Party may
submit the dispute to arbitration subject to and in accordance with this
Article 13.0.
13.3. Arbitration.
a) Except as provided by Sections 13.1(c) and 13.2, all disputes arising out of or
related to this Agreement shall be referred to and finally resolved collectively by
final and binding arbitration in accordance with the Rules of Arbitration of the
American Arbitration Association in force on the date of this Agreement (the
"Rules"), which Rules are deemed to be incorporated by reference into this
clause.
b) The arbitration shall be heard and determined by 3 arbitrators (the "Arbitration
Panel"), one each of whom shall be selected by the Parties, and the third of whom
shall be appointed by the mutual agreement of the 2 arbitrators selected by the
Parties. Each arbitrator shall be a suitably qualified jurist with at least 10 years'
experience as a jurist and/or arbitrator of complex arbitration proceedings and
shall not be a Person, or an Affiliate of a Person, who has any past, present or
currently contemplated future business or personal relationship with either the
Baytown Parties, Hyatt or any of their Affiliates. If, within 30 days following the
date upon which a claim is received by the respondent, the arbitrators selected by
the Parties cannot agree on the third arbitrator, then the Court of Arbitration of the
International Chamber of Commerce shall select the arbitrator. The Arbitration
Panel shall be instructed to apply the internal laws of the State of Texas (without
regard to conflict of laws principles) in resolving the subject dispute.
c) Discovery shall be limited as follows, except as otherwise agreed by the Parties or
as otherwise directed by the arbitrators, upon good cause being shown: The
Parties shall (i) produce relevant documents and information to each other as if
Rule 34 of the Federal Rules of Civil Procedure applied to the arbitration
proceeding; provided that each Party shall limit its requests to produce document
to no more than 25 (any subparts to be counted as a separate request), and its
interrogatories to no more than 10 (any subparts to be counted as a separate
N
interrogatory). On a date set by the Arbitration Panel, but in no event more than
30 days after the third arbitrator is selected, the Parties shall exchange document
requests and any interrogatories. The Parties may schedule up to 3 depositions of
fact witnesses and up to 2 depositions of expert witnesses, which shall be noticed
and taken in a manner consistent with the Federal Rules of Civil Procedure as if
those Rules applied to the arbitration proceeding. Any such written discovery
shall be completed within 60 days following the selection of the arbitrator, and
any such deposition discovery within 105 days following the selection of the
arbitrator.
d) On a date set by the Arbitration Panel, but in no event more than 30 days after the
depositions are complete, the Parties shall deliver to the Arbitration Panel and
each other a written statement of their respective positions with respect to the
dispute(s) at issue and their reasons in support thereof. Within 14 days thereafter,
the Parties may submit to the Arbitration Panel and, if so, deliver to each other, a
written response to the other Party's statement. Unless requested by the
Arbitration Panel, no hearing shall be required in connection with any arbitration,
and the Arbitration Panel may elect to base his or her award on the written
material submitted by the Parties; provided, however, that the Parties shall submit
to hearings, and be prepared to present testimony, if so requested by the
Arbitration Panel.
e) Following receipt of the written materials from each Party provided for in Section
13.3(d) above, and following any hearing held in connection with such arbitration,
the Arbitration Panel shall render its award (the "Arbitration Award"). The
Parties agree that the Arbitration Award shall be final and binding upon Hyatt and
the Baytown Parties and each Party's parent company or companies (and all other
Affiliates), principals, successors, and assigns. Except as otherwise required by
Applicable Law, the Arbitration Award, the content of the arbitration proceedings
and any discovery produced by any Party therein shall be kept strictly confidential
by both Parties. If any Party fails to abide by the terms of the award within the
time periods so specified, judgment on the award rendered by the Arbitration
Panel may be entered in any court of competent jurisdiction by the other Party
under seal for the sole and limited purpose of confirming the terms of the
arbitration award if the non -prevailing Party has refused to abide by such terms
(such confirmation proceeding shall take into consideration the Parties' agreement
that the matters arising out of or related to the arbitration proceeding are
confidential). The Parties waive any personal jurisdiction objections for the
purpose of any enforcement proceedings.
f) The Arbitration Panel may not award damages in excess of compensatory
damages or otherwise in violation of the limitation on damages set forth in
Section 12.7. The Arbitration Panel shall have no power to ignore or override any
express provision of this Agreement. Any monetary award shall be made and
shall be payable in US Dollars, free and clear of any withholdings or deductions
(including on account of taxes). The award shall include a payment date and
20
interest from the date of any breach or other violation of this Agreement to the
date when the award is paid in full. The Arbitration Panel shall also fix an
appropriate rate of interest. In no event, however, shall the interest rate during
such period be lower than the prime commercial lending rate charged by Bank of
America, National Association (or its successor), to its most creditworthy
commercial borrow.
g) The place of arbitration shall be Houston, Texas.
h) Hyatt and the Baytown Parties agree that arbitration will be conducted on an
individual, not a class -wide, basis; that only Hyatt (and/or its Affiliates and its and
their respective owners, officers, directors, agents, and/or employees, as
applicable) and the Baytown Parties (and/or its Affiliates and its and their
respective owners, officers, directors, agents and/or employees, as applicable)
may be the parties to any arbitration proceedings described in this Section 13.3;
and that an arbitration proceeding between Hyatt (and/or its Affiliates and its and
their respective owners, officers, directors, agents, and/or employees) and the
Baytown Parties (and/or its Affiliates and its and their respective owners, officers,
directors, agents and/or employees) may not be consolidated with any other
arbitration proceeding between Hyatt and any other person. Notwithstanding the
foregoing or anything to the contrary in this Section 13.3, if any court or arbitrator
determines that all or any part of the preceding sentence is unenforceable with
respect to a dispute that otherwise would be subject to arbitration under this
Section, then all parties agree that this arbitration clause shall not apply to that
dispute and that such dispute shall be resolved in a judicial proceeding in
accordance with Section 13.1(c).
i) Except as otherwise explicitly provided in this Agreement, subject to Section
13.1(c) and 13.2, the Arbitration Award shall be the sole and exclusive remedy
between the Parties regarding any and all claims and counterclaims presented to
the arbitration panel, and any determination or decision taken by the Arbitration
Panel shall be binding on the Parties. The Parties waive any rights to appeal any
Arbitration Award or to seek determination of a preliminary point of law by any
court or judicial body. Notwithstanding the foregoing, each Party reserves the
right to challenge an Arbitration Award on the ground that a member or members
of the Arbitration Panel (a) did not disclose a disqualifying conflict of interest
and/or (b) acted in excess of his or her powers or in violation of his or her duties.
j} If a Party institutes an arbitration (or other proceeding authorized under Section
13.1 c above) related to this Agreement, each Party shall be solely responsible
for its own fees, costs and expenses related to such arbitration or other
proceeding. The prevailing Party in any arbitration (or other proceeding
authorized under Section 13.1(c) above) related to this Agreement shall not be
entitled to recover any fees, costs or expenses from the losing Party in connection
with such arbitration or other proceeding (including, but not limited to, any
21
actions to enforce any arbitration awards or any of the provisions of this Article
iLO-).
14.0 NOTICES.
All notices or other communications hereunder shall be in writing and shall be deemed
duly delivered (a) upon personal delivery thereof to, and actual receipt by, the other
Party; (b) upon electronic facsimile transmission to the other Party, at its fax number as
set forth below, provided such delivery is followed by an original of the notice delivered
to the other Party by overnight delivery or United States postal service delivery and
provided the facsimile copy sent by the sender provides an automatic notation confirming
the delivery thereof; or (c) on the next business day following delivery by the sender to a
recognized and reliable air freight delivery service. All notices delivered hereunder shall
be pre -paid by the sending Party and shall be addressed to the Parties as follows:
to PFC at: Baytown Public Facilities Corporation
2401 Market Street
Baytown, Texas 77250
citymanager@baytown.org
With a copy to: General Counsel's Office
2401 Market Street
Baytown, Texas 77520
legal@baytown.org
to Owner at: Baytown Municipal Development District
Attention: General Manager
2401 Market Street
Baytown, Texas 77250
citymanager@baytown.org
With a copy to: General Counsel's Office
2401 Market Street
Baytown, Texas 77520
legal@baytown.org
to Hyatt at: Hyatt Corporation
150 North Riverside Plaza
Chicago, IL 60606 USA
Attn: Global Head Design/Product & Brand
Facsimile: 312-780-5286
With a copy to: Hyatt Corporation
150 North Riverside Plaza
Chicago, IL 60606 USA
22
Attn: General Counsel
Facsimile: 312-780-5284
Email: office.of.general.counsel@hyatt.com
Any party hereto shall have the right to change its address for notice or its fax number, or
the identity of persons (not more than 2 in number) entitled to receive copies of any such
notices, by delivery in the manner hereinabove provided of an appropriate notice to the
other Party setting forth the new address or the new fax number, or the identity of the
additional or replacement persons entitled to receive copies, or any one or more thereof.
15.0 APPLICABLE LAW/COUNTERPARTS.
This Agreement shall be construed, interpreted and applied in accordance with, and shall
be governed by, the laws of Texas, United States of America. Venue for any action
brought with respect to any claims arising out of this Agreement shall be brought
exclusively in Harris County, Texas. This Agreement shall be executed in counterparts,
three each in the English language, each of which shall be deemed originals and shall
have equal force and effect. For purposes of enforceability, signatures delivered by
facsimile or electronic mail shall have the same force and effect as they are originals.
16.0 ASSIGNMENT.
16.1. Hyatt shall have the right to assign its rights and obligations under this Agreement to (i)
any one or more Affiliates including, without limitation, wholly -owned subsidiaries of
Hyatt Hotels Corporation, (ii) to any person that may become an Affiliate as a result of a
related and substantially concurrent transaction, or (iii) to any successor or assign of
Hyatt that may result from any merger, securities offering, consolidation or
reorganization, or to a person that shall acquire all or substantially all of the business and
assets of Hyatt Hotels Corporation and its Affiliates, provided that in each case, the
assignee is capable of delivering the Technical Services to the same degree as Hyatt.
16.2. Except as hereinabove provided, Hyatt shall not assign this Agreement without the prior
written consent of the Baytown Parties. No delegation by Hyatt of any part of its
operating duties and responsibilities hereunder or to an affiliate of Hyatt, and no change
in the identity of the party or parties directly or indirectly in control of Hyatt, shall be
deemed an assignment of this Agreement.
16.3. The Baytown Parties shall be obligated to assign its rights and obligations under this
Agreement to the assignee of the Hotel Services Agreement if effective assignment of the
Hotel Services Agreement occurs in compliance with the terms thereof. In such case, the
assignment of this Agreement shall occur concurrently with the assignment of the Hotel
Services Agreement. Except for such assignment, the Baytown Parties shall not assign
this Agreement without the prior written consent of Hyatt.
23
16.4. The terms, provisions, covenants, undertakings, agreements, obligations and conditions
of this Agreement shall be binding upon and shall inure to the benefit of the successors in
interest and the permitted assigns of the Parties, as provided herein, except that no
assignment, transfer, pledge, mortgage or lease by or through Hyatt or by or through the
Baytown Parties, as the case may be, in violation of the provisions of this Agreement
shall vest any rights in the assignee, transferee, mortgagee, pledgee, lessee or in any
occupant.
17.0 SEVERABILITY.
If any term or provision of any Article or Section of this Agreement, or the application
thereof to any persons or circumstances, shall to any extent or for any reason be invalid
or unenforceable, the remainder of this Agreement and the application of such term or
provision to persons or circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby, and each term and provision of any Article or
Section of this Agreement shall be valid and enforced to the fullest extent permitted by
law.
18.0 NO WAIVER.
No failure of Hyatt to exercise any power given to Hyatt hereunder, or to insist upon
strict compliance by the Baytown Parties with Hyatt's obligations hereunder, and no
custom or practice of the Parties at variance with the terms hereof shall constitute a
waiver of Hyatt's right to demand exact compliance with the terms hereof.
19.0 ENTIRE AGREEMENT.
This Agreement, and the exhibits and appendices hereto and other references to other
agreements made herein, constitute the entire understanding and agreement of the parties
hereto with respect to the subject matter hereof and supersede all prior understandings
and writings between the Parties.
20.0 THIRD PARTY BENEFICIARIES.
Except as provided in the Hotel Services Agreement regarding the rights of lenders, none
of the obligations hereunder of any party shall run to or be enforceable by any Party other
than the parties to this Agreement or their respective successors and assigns in
accordance with the provisions of this Agreement.
21.0 HEADINGS.
The Article and Section headings contained herein are for convenience of reference only
and are not intended to define, limit or describe the scope or intent of any provision of
this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
24
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first above written.
PFC:
BAYTOWN HOSPITALITY PUBLIC FACILITIES
CORPORATION,
a nonprofit corporation created by the City of Baytown,
Texas, under Chapter 303, Texas Local Government Code
By: _
Name:
Title:
OWNER:
BAYTOWN MUNICIPAL DEVELOPMENT
DISTRICT,
a municipal development district established by the City of
Baytown, Texas, pursuant to Chapter 377 of the Texas Local
Government Code
Name:
Title:
[Signature Page Technical Services Agreement]
HYATT CORPORATION, a Delaware corporation
By:
Name:
Title:
FOR INTERNAL OFFICE USE ONLY:
Americas Design Services:
[Signature Page Technical Services Agreement]
EXHIBIT A
DEFINITIONS
"Affiliate" means a legal entity or an individual who directly or indirectly through one or more
intermediaries has control of a Party, or is controlled by a Party or is jointly controlled together
with a Party. For purposes hereof, the term "control' means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and policies of such
entity, either alone or in combination with any one or more Persons. Persons who are Affiliates
of each other are sometimes herein referred to as being "Affiliated."
"Applicable Law" means any provision of law applicable to the Hotel, its operations, this
Agreement and the Parties, including any statute, ordinance, regulation, rule, environmental law
or order of any governmental or inter -governmental instrumentality, agency or tribunal,
including the Texas Public Information Act.
"FF&E" means all furniture, furnishings and equipment located at the Hotel, together with all
replacements therefor and additions thereto, but shall not include operating equipment, such as
uniforms, china, glassware, linens and silverware and the like.
"Hotel Standard" as applied to any aspect of the construction, operation, maintenance, repair,
furnishing, equipping or refurbishment of the Hotel, means a collective reference to (a) a
standard of service and quality that (x) is generally consistent with the standards applicable to
upper upscale hotels operating in the same market as the Hotel and (y) is equal to or better than
the level of service and quality prevailing from time to time at Brand hotels, taking account of
differentiation based upon geographical location, business mix, facilities, market segment and
other similar elements that impact operational standards, and (b) the operational standards,
policies and programs generally applicable to Brand hotels.
"Hyatt Trademarks" means the name "Hyatt" and various other service marks, trademarks,
trade names, slogans, symbols, designs, insignia, emblems and other identifying characteristics
associated with Hyatt, its Affiliates and/or the Brand, in all cases whether graphic or verbal.
"Person" as the context requires, means an individual (and the heirs, executors, administrators,
or other legal representatives of an individual), a partnership, a joint venture, a firm, a company,
a corporation, a government or any department or agency thereof, a trustee, a trust, an
unincorporated organization, or any other legal entity of whatever kind or nature.
"Texas Public Information Act" means Chapter 552, Texas Local Government Code, as
amended, or its successor.
"US Dollars" and "US V means Dollars, the lawful currency of the United States of America.
A-1
EXHIBIT B
PROPERTY DESCRIPTION
[See Attached]
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EXHIBIT C
PRELIMINARY AREA PROGRAM
The Hotel shall consist of:
A. the portion of the Site containing the Hotel;
B. hotel building or buildings, completely air conditioned as well as ancillary and
support spaces such as exterior corridors (in resorts), parking structures,
maintenance buildings, and other buildings that do not require A/C, with
(1) areas and facilities including (a) approximately 208 guest rooms, each
with bathroom, (b) restaurants, bars and banquet facilities, a ballroom,
meeting and other public rooms (of approximately 20,400 square feet of
meeting rooms and banquet and pre -function areas), (c) a fitness center,
(d) parking space for guests and some employees, (e) storage and service
support areas, (f) offices for employees, (g) business center, and (h)
recreational facilities and areas;
(2) appropriate millwork and all installations and building systems necessary
for the operation of the building for Hotel purposes (including, without
limitation, elevator, heating, ventilating, air conditioning, electrical
including lighting, plumbing including sanitary, refrigerating, telephone
and communications, safety and security, laundry storage and kitchen
installations and systems);
(3) all furniture and furnishings, which shall include, guest room, office,
public area, and other furniture, carpeting, draperies, lamps and similar
items;
(4) kitchen equipment and laundry equipment;
(5) special hotel equipment and adequate spare parts therefor, which shall
include (a) all equipment required for the operation of (i) guest rooms,
including televisions, mini -bars and safes, (ii) banquet rooms, (iii)
employee locker rooms, and (iv) fitness center, (b) office equipment,
including computer hardware and software as selected by Hyatt, (c) dining
room carts, (d) material handling equipment, (e) cleaning and engineering
equipment, and (f) motor vehicles as required for guest and employee
transportation;
C-1
(6) dining room accessories, kitchen utensils, engineering tools and
equipment, housekeeping utensils and miscellaneous equipment and
accessories (hereinafter called "Ancillary Hotel Equipment');
(7) uniforms, china, glassware, linens, silverware, and the like (hereinafter
called "Operating Equipment');
C. public grounds, gardens and other landscaping features and facilities;
D. such other facilities and appurtenances, as are necessary or desirable for the
operation of the Hotel under Hotel Standard.
The items to be supplied by PFC under (3), (4), and, with the exception of spare parts, (5) of
subsection B above are hereinafter collectively referred to as "Furnishings and Equipment."
The foregoing description of the Hotel is hereinafter referred to as the "Preliminary Area
Program."
C-2
EXHIBIT D
TECHNICAL SERVICES
1. PREFACE / INTRODUCTION
1.1 General Description of Services. Hyatt shall, subject to the terms and conditions
of this Agreement, provide the Technical Services to the Baytown Parties for the Hotel to
assist PFC in complying with its obligations as provided herein. Hyatt shall advise PFC and
its Consultants on the Hotel Standard to be met, the aesthetics to be reflected, and the systems
to be installed in the Hotel, in order that the Hotel can be opened and operated as a Brand
hotel. Specifically, Hyatt will advise PFC and its Consultants in the areas of architectural and
interior design, Mechanical, Electrical and Plumbing ("MEP") Systems, Trade Equipment
specifications and layouts, Audio. Visual Systems, Telecommunications Systems, Security
Systems and Project Systems. All Technical Services will be coordinated through the Hyatt's
Representative.
Hyatt shall provide the Technical Services within the timeframes to be mutually agreed to by
the parties:
Technical Services Key Milestones
Additional Comments
Stakeholder Immersion Workshop
At Hyatt Corporate Office
Concept Design Presentation
Approval of Presentation is a
Pre -Condition to further
design progress
Mock -Up Room Package
Approval of Package is a
Pre -Condition to further
design ro ress
Schematic Design Presentation
Approval of Presentation is a
Pre -Condition to further
design progress
Kitchen & Laundry Coordination
Workshop
MEP, FLS, IT, AN Coordination
Workshop
Mock -Up Room Review
Design Development Presentation
Approval of Presentation is a
Pre -Condition to further
design progress
BOH Plans
Revised Mock -Up Room Review
Completion of Shell and Core
Arrival of FF&E (FF&E Manager)
D-1
Prototype Room Review
Fagade Completion
Pre -Condition to GM On -
Boarding
Hotel Preliminary Opening Schedule
Presentation To PFC
Handover KOM With PFC and
Operations
Testing And Commissioning
Pre -Condition to moving on -
site
FLS Inspection
Pre -Condition to moving on -
site
Pre -Opening Period - On site
Any omissions or items not specifically referenced in a Hyatt report does not constitute an
acceptance or approval of missing Preliminary Area Program or Hotel Standard. All Site
visits are for the purpose of reviewing the General Contractors implementation of the Hotel
Standard into the final building for the Project.
1.2 Technical Services. In performing the Technical Services, Hyatt shall:
A. Designate, in writing, its Hyatt's Representative.
B. Provide, communicate and interpret the Hotel Standard for PFC and its
Consultants during all phases of the Project.
C. Review the Development Timetable and Project Budget for the Project prepared
by PFC for completeness and reasonableness in accordance with Section 7.1 of
this Agreement.
D. Attend design meetings and make periodic observations of the work throughout
the Project in accordance with the Development Timetable approved by PFC and
Hyatt to advise and provide guidance to PFC and its Consultants in complying
with the Hotel Standard.
E. Provide operational and technical assistance to PFC in developing the Hotel in
conformity with the Preliminary Area Program.
F. Review and comment on each level of the design documents for the Project
submitted by PFC at the completion of the design phases and the Project Schedule
prior to moving onto the next step of design in accordance with the submittal
process below. Any items that do not comply with the Hotel Standard and the
Preliminary Area Program or are not otherwise aesthetically acceptable to Hyatt
will be returned to PFC with a written explanation detailing the reasons for such
non-compliance. DESIGNS OR INCOMPLETE SUBMITTALS NOT
APPROVED BY HYATT MAY NEED TO BE RESUBMITTED BY OWNER.
D-2
G. Upon determination by Hyatt that each level of the design documents submitted
by PFC pursuant to the submittal process set forth in Section 11 below comply
with the Hotel Standard, provide formal comments which may be delivered
electronically, which shall constitute the acknowledgement by both Parties that
such documents are approved by Hyatt.
H. Review other reports and studies provided by PFC's Consultants required for the
design of the Project which consist of the final versions of all design documents
and studies requested in prior submissions which have incorporated all Hyatt
comments.
I. Conduct a Risk Assessment and Mitigation Plan review to identify the level of
potential threats and hazards to the Hotel and to determine the types and extent of
Security Systems required to meet the Hotel Standard, provide on Background
Drawings the location of certain security cameras and locking mechanisms, and
provide review of Security Consultant Drawings indicating the location of
security cameras and locks, and outline specifications. "Background Drawings"
shall mean to scale floor plans, interior wall elevations and reflected ceiling plans
prepared by the Architect clearly delineating structural grid, walls, partitions,
columns, shafts and chases, such drawings generally devoid of dimensional lines
and notations within perimeter walls.
Consult with PFC to determine the appropriate quantities of Operating Equipment
required to meet the Hotel Standard and needs of Hyatt to operate the Hotel.
K. Prepare the Supplies Documents for the Operating Equipment and review any
Supplies Documents substitutions proposed by PFC.
1.3 Potential Consultants List
a) In accordance with Section 5.1(a) of this Agreement, Hyatt will provide
knowledge and expertise in the selection of certain key consultants, providers and
specialists for PFC to select and appoint, to the extent necessary and appropriate
in relation to the scope including but not limited to:
■ Design Architects (Total project)
■ Working (Local) Architects, Architects of Record
■ MEP Services Consultants (IIotel)
■ Interior Design Consultant (Limited to Program Implementation)
■ Interior & Exterior Lighting Consultants (Limited to Program
Implementation)
■ Landscape Designer
■ Food Service/Kitchen Consultant or Providers
D-3
■ Food & Beverage Consultant (where required)
■ Audio Visual Consultant or Providers
■ Graphics and Signage Consultant or Providers
■ Communications and Information Technology Consultant or Providers
■ Furnishings and Equipment and Operating Equipment Purchasing Agent
■ Technical Spa Specialist, if applicable to Project
■ Branding Consultant, if applicable to Project
b) In accordance with Section 5.1(b) of this Agreement, PFC may be required to
engage certain of the following key consultants, providers and specialists:
■ Structural Engineers
■ Vertical Transportation/Elevator Consultant or Providers
■ Building Security and Fire Protection Consultant
■ Acoustics Consultant
■ Security Consultant
■ Sustainable Design Consultant
■ Fire and Life Safety/LEED Consultant
■ Testing and Commissioning Consultant
■ Artwork Consultant
■ Uniform Designer
■ Curtainwall Facade Consultant
c) Following PFC's selection of all key consultants, Hyatt shall be available to
review all selections, prior to the engagement of any consultant, for Brand
approval. All consultants must have previous experience with similar type
projects and must provide a presentation along with resumes of key personnel that
would be working on the Project. Hyatt will provide PFC with the Preliminary
Area Program and PFC will provide this same information to each consultant.
Hyatt shall provide a detailed explanation of the Hotel Standard and the
Preliminary Area Program information to the potential consultants or providers.
Hyatt will be available for additional explanation once a short list of consultants
has been established. It may be necessary for key consultants to travel to the
Hyatt offices in Chicago, Illinois, USA or the Division Office if so directed by
Hyatt for a final interview.
2. DESIGN PLANNING AND DEVELOPMENT
2.1. Hyatt shall participate in all phases of the Hotel design process in order to assist with the
full and proper implementation of the relevant Hotel Standard, and in this connection
shall provide review, recommendations, comments and approval to the key consultants
relating to:
D-4
■ Conceptual designs and planning exercises submitted by PFC's consultants for
Hyatt review and approval
• Schematic documents including basis of design drawings, sketches, renderings,
and short form specifications that fix and describe the size and character of the
Hotel project
■ Design development documents including drawings, sketches, system schematics,
schedules and specifications, material samples and specifications, Furnishings and
Equipment layouts, samples and specifications
• Final construction documents including fully -coordinated drawings,
specifications, samples, and value engineering exercises.
2.2. In addition to the above, Hyatt shall deliver the following services during the design
planning stages:
■ Inspection, review and formal recording of the Mock-up Room (constructed
physical representation of the designed guestroom) presentation with a detailed
report submittal to PFC
■ Inspection, review and formal recording of the Prototype Room (constructed
physical representation of the designed guestroom) presentation with a detailed
report submittal to PFC, subject to Section 3.4 of the Agreement
■ Attendance at key design coordination meetings as mutually agreed by PFC and
Hyatt
■ Review, recommend and comment on the plans showing functional "Back of
House" layouts and key Furnishings, Equipment, and Millwork
3. FURNISHING AND EQUIPMENT SELECTION AND RECOMMENDATIONS
3.1. Hyatt shall provide to PFC and the key consultants guidance on Furnishings and
Equipment by delivering the following services:
• Review the preliminary Furnishings and Equipment budget prepared by PFC in
accordance with the approved preliminary Hotel project description and design
statement, area program and operational concepts
■ Review and comment on the preliminary Furnishings and Equipment budget in
accordance with approved project design development (it being understood and
agreed that Hyatt and its affiliates do not and cannot warrant or guarantee that the
necessary Furnishings and Equipment can be obtained within the parameters of
the Furnishings and Equipment budget)
■ Participate in the selection of suppliers
■ Review of relevant consultants' Furnishings and Equipment specifications and
anticipated costs and preparation of review report containing approval or
requirements for modification, correction and re -submittal
■ Facilitate the review of Computer and Telephone Equipment Schedules and
Specifications with Hyatt's IT Support Personnel
■ Submittal of product specifications for key operational items
D-5
■ Review and approval of revised Furnishings and Equipment specifications in the
event that competitive tendering results exceeded approved Furnishings and
Equipment budget, to the extent Hyatt has agreed that to do so is feasible without
compromising the Hotel Standard
■ Review of food and beverage and spa concepts.
3.2. Hyatt reserves the right to withhold approval of any Furnishings and Equipment items
that:
■ Exceed the approved Furnishings and Equipment budget
■ Are operationally incorrect or unsuitable or do not meet Hotel Standard
• Do not meet Hyatt product specifications or design minimum standards
4 CONSTRUCTION PHASE AND PREPARATION FOR OPERATIONS
4.1 Hyatt shall, for the purpose of ensuring compliance with the approved design
documentation and minimum standards, engage in the following activities:
■ Undertake site visits in an amount and on a schedule as mutually agreed by PFC
and Hyatt, together with provision of reports and recommendations
■ Request, as is reasonably diligent, the submittals of subcontractors' shop drawings
and supply specifications together with the relevant consultants' review
comments and recommendations
■ Provide comments, as appropriate for design intent only, on select shop drawings
and supply specifications
■ Liaise with appointed Project Manager on site progress, scheduling and the
inspection sequencing and the preparation for the operation of the Hotel
■ Coordinate the pre -opening Fire & Life Safety inspection by a consultant that is
pre -qualified by I lyatt, at PFC's expense
■ Review and comment on system, equipment, material, and manufacturer vendor
selections and submittals, especially for critical systems; equipment including, but
not limited to, chillers, boilers, emergency generators, transformers, fire detection
and alarm systems, building automation systems, security systems, elevators and
escalators, lighting control systems, audio/visual systems, voice and data systems,
TV systems, water treatment systems, air handling systems, etc.
5 FIRE AND LIFE SAFETY SYSTEMS AND MEP TESTING & COMMISSIONING
1 PFC shall ensure that all Fire and Life Safety and MEP systems and components are
completed, tested and commissioned in preparation for Hyatt's inspection prior to
commencement of Hotel operations. A timetable detailing the dates and duration of each
system's and components' testing and commissioning period shall be submitted to Hyatt
to allow the attendance and witnessing of all testing and commissioning procedures by
the relevant consultants and Hyatt.
m
5.2 Hyatt will not be able to approve any Fire and Life Safety and MEP system or component
that has not been fully tested and commissioned with recorded results. Prior to
occupation and operation of the building, in whole or in part, a third party "Fire and Life
Safety Audit" must be completed by or on behalf of PFC, at PFC's expense. PFC shall
provide a copy of such Fire and Life Safety Audit report to Hyatt. All noted deficiencies
must be completed by PFC to Hyatt's satisfaction prior to the occupation and operation of
the Hotel.
6 INSPECTION BY I [YATT
6.1 Following receipt of a pre -opening inspection report (prepared by consultants) and
subject to a satisfactory level of completion achieved, Hyatt shall conduct their own
inspection and detail in a report:
Variances from approved minimum standards or subsequently approved contract
specifications
Defective architectural, Fire and Life Safety and MEP or interior works
Defective, missing or incomplete Furnishings, Fixtures, and Equipment
6.2 Hyatt shall issue this report to PFC and any third parties as instructed by PFC.
6.3 Hyatt will not be able to assess any areas for which a report detailing their comments has
not been prepared and circulated, or with respect to any areas which have not been
substantially completed and installed with FF&E.
7 APPROVAL BY HYATT / HYATT MANAGEMENT PERSONNEL
7.1 Hyatt shall issue its approval for the Hotel's management personnel to take over
provisional occupancy of the relevant area and the operation of any supporting Fire and
Life Safety and MEP system and components following the preparation and submission
to the PFC/Developer of Hyatt's inspection reports and the remedy of any substantial
defects contained therein. Any such takeover shall not imply Hyatt's final approval of
the area, system or component, which shall be subject to full load testing under operating
environment and conditions and the remedy of all recorded, hidden and latent defects.
7.2 Hyatt will not be able to approve for the Hotel's management personnel to take over any
areas in which non -hotel personnel have access. Such areas may be mutually utilized by
all parties until they can be secured, completed, inspected and prepared for handover to
the Hotel's management personnel.
7.3 All areas, which have been provisionally taken over by the Hotel's management
personnel, shall be under their full control including all keying systems and issuance of
keys.
7.4 All costs associated with the Hotel's management personnel's provisional area
occupation, such as energy consumption, including that used for the testing and
commissioning of the Fire and Life Safety and MEP systems and components, and
security attendance at the project site prior to the formal opening, shall be paid for by
PFC.
8 FORMAL OPENING OF HOTEL/PRO-FORMA HANDOVER SCHEDULE
8.1 The formal opening of the Hotel shall occur in accordance with the terms and conditions
set forth in the Hotel Services Agreement. Construction progress shall be monitored.
Hyatt and PFC shall mutually agree upon a handover schedule together with a diagram
showing the sequence of the area -by -area handover.
8.2 The following example table will be tailored and agreed to by the Parties for the Hotel
Project:
Ten Weeks
Eight Weeks
Six Weeks
Four Weeks
Three Weeks
Two Weeks
One Week
Prior to
Prior to
Prior to
Prior to
Prior to
Prior to
Prior to
Opening
Opening
Opening
Opening
Opening
Opening
Opening
Purchasing/
All Retail
Indoor &
Reception
500o remaining
Remaining
Outdoor
Materials
Areas for
outdoor pools
Concierge,
Restaurants and
Restaurants and
Facilities,
Management
Tenant Fit -Out
& spa
Front Desk,
Bars
Bars
Parking Lot, &
Offices
Business
Landscaping
Center
Human
150o of
300o of
5010 of
800o of
Retraining
Resources
Guestroom
Guestroom
Guestroom
Guestroom
Guestrooms,
Training
Count,
Count,
Count,
Count,
Corridors, &
Offices
Corridors
Corridors
Corridors
Corridors &
BOH Areas
Executive
& BOH Areas
& BOH Areas
& BOH Areas
BOH Areas
Offices
(completed
(completed
(completed
floors only)
floors only)
floors only)
PABX
All remaining
Employee
Cafe Restaurant
Fitness Center
Hotel Entry
Equipment
Hotel Offices in
Lockers
Receiving
Room &
BOH & FOH
Employee
Areas
Operators Area
Areas
Dining Room
All Storerooms
Ballrooms and
Laundry &
Remaining
Hotel Lobby
and Workshops
Meeting Rooms
Valet Area
Meeting Rooms
and
Support Areas
remaining
Public Areas
Employee
Computer
Banquet
Uniform Issue
Guestroom
Club
residences (if
Equipment
Kitchen
Area
Elevators
Lounge
applicable to
Room
the Project)
Service
F&B Stores &
Service
Remaining
Remaining
Elevators
Preparation
Elevators
Kitchens
Elevators
Areas
R
9 HOTEL PROJECT COMPLETION SEQUENCE
Pro -forma Handover Schedule
Construction Progress Monitored
Opening Date Confirmation
Project Specific Handover Schedule
Area by Area Completion
i
MEP Commissioning Or ConsultanWProjectManagement f—
Inspection
Inspection Reports Issued
Hyatt Inspection Report
Remedy of Defects
OPERATIONS TAKE -
Hotel Opening
Remedy of Remaining, HlddenA atent Defects
10 HOTEL STANDARD COMPLIANCE
The Hotel Standard documents shall be regarded as the criteria of the minimum
recommendations and requirements for the design of all new Brand hotels
operated by affiliates of Hyatt, or renovations of existing facilities in such hotels.
In addition, the current Hotel Standard for the Brand hotel shall be referenced
when undertaking any new building or renovation project.
Adherence to these standards, or other Hyatt criteria or approval, shall not relieve
the architect and/or other consultants and designers of the responsibility of
conforming to all legally adopted codes and standards, other governmental
requirements and good professional design practice. Where designs deviate from
applicable codes and standards, acceptance or approval by the Authority Having
Jurisdiction (AIIJ) shall be documented and kept on file by PFC.
Throughout the Hotel Standard references are made to contacting and/or obtaining
approval from "Hyatt." Hyatt's Representative shall be appointed at the
beginning of the design process for new hotels, and shall be responsible for
project oversight on behalf of Hyatt in accordance with the provisions of this
Agreement, ensuring that the Project complies with the Hotel Standard, and
reflects the applicable Brand design philosophy. Hyatt may designate a qualified
employee of one of its affiliates to act as the Hyatt Representative and to
otherwise provide Technical Services, and to the extent that Hyatt does so, all
references to Hyatt in this Appendix and the preceding Agreement shall be
deemed to include all such employees of IIyatt's affiliates.
11 PFC DELIVERABLES
11.1 The following is an outline of the required Design Review Submittal Process that
will facilitate the review and release of the design plans, construction plans and
specifications as well as the subsequent completion of a new Brand hotel. All reviews
and releases shall be in English, in writing or PFC shall provide Hyatt with an English
written translation. Submittal of all design and construction plans and specifications are
to be made in hard copy format as required in Section 7.5 of the Agreement as follows:
A Hyatt Representative will be in attendance at key design coordination
meetings as mutually agreed by PFC and Hyatt:
1. Conceptual Design Submittal — This step shall contain the conceptual
designs and planning exercises and shall be submitted to Hyatt at the milestones
indicated below. The conceptual design documents will include at minimum the
following items, without limitation.
- Layout Plans
- Sketches and conceptual imagery to illustrate the general planning
and design aesthetic for the Project.
- MEP, FLS, IT Basis of Design Narrative
Unacceptable designs or incomplete submittals may need to be resubmitted.
Hyatt will issue a formal review prior to moving onto the next step. The required
submittal times are set forth below.
50% Concept Design Presentation
100% Concept Design Document Submittal
2. Schematic Design Submittal — This step shall contain documentation
sufficient to review the general building and landscape concept, guest room
layouts, public space layouts, and BOII blocking and shall be submitted to Hyatt
D-10
at the milestones indicated below. The schematic design documents will include
at minimum the following items, without limitation.
- Completed Site Plan
- Individual Floor Plans
- All Building Elevations
- Roof Plan
- Full Building Cross Section
- Food Service Equipment Plans
- Laundry Equipment Plans
- Basis of Design for Food Service and Laundry including sizing for
Laundry
- MEP, FLS, IT Plans denoting major Systems and Equipment
- Material Imagery and Samples (inclusive of BOH areas)
- Furnishings Imagery
- Exterior Signage schematics
Unacceptable designs or incomplete submittals may need to be resubmitted.
Hyatt will issue a formal review prior to moving onto the next step. The required
submittal times are set forth below.
50% Schematic Design Presentation
100% Schematic Design Document Submittal
3. Mock-up Room Submittal -- This step shall contain a complete set of all
documentation necessary for construction and procurement of the mock-up rooms
and corridor mock-up section and shall be submitted to Hyatt at the milestones
indicated below. The mock-up room documents will include at minimum the
following items, without limitation.
- Architectural Drawings
- Interior Design Drawings
- Lighting Design Drawings
- MEP Drawings
- FLS Drawings
- IT Drawings
- AN Drawings
- Schedules and Specifications
- Material Samples and Specifications
- Furnishings and Equipment Layouts
- Furnishings and Equipment Samples and Specifications.
Unacceptable designs or incomplete submittals may need to be resubmitted. Hyatt
will issue a formal review prior to moving onto the next step. The required
submittal times are set forth below.
D-11
100% Mock-up Room Document Submittal
Mock-up Room Review and Presentation
4. Design Development Submittal - This step shall contain a complete set
of all progress plans and specifications, construction documents and Fire and Life
Safety and MEP narrative, with sufficient details and dimensions to ascertain
whether basic criteria is being incorporated and shall be submitted to Hyatt at the
milestones indicated below. The design development documents will include at
minimum the following items, without limitation.
- Architectural Drawings
- Interior Design Drawings
- Landscape Drawings
- Pool ;' Water Feature Drawings (if applicable)
- Lighting Design Drawings
- MEP Drawings
- FLS Drawings
- IT Drawings
- AN Drawings
- Keyed Food Service Equipment Plans and Elevations
- Keyed Laundry Equipment Plans and Elevations
- Sketches as required
- System Schematics
- Schedules and Specifications (inclusive of BOH areas)
- Material Samples and Specifications (inclusive of BOH areas)
- Furnishings and Equipment layouts (inclusive of BOH areas)
- Furnishings and Equipment Samples and Specifications. (inclusive
of BOl l areas)
- Exterior Signage Drawings
Unacceptable designs or incomplete submittals may need to be resubmitted. Hyatt
will issue a formal review prior to moving onto the next step. The required
submittal times are set forth below.
50% Design Development Presentation
100% Design Development Document Submittal
5. Construction Documentation Submittal — This step shall include a
complete and fully coordinated set of final constructions documents for the
construction of the Project, for review and approval by Hyatt and shall be
submitted to Hyatt at the milestones indicated below. Hyatt will review for Brand
compliance and comment on any required modifications for permitting. The final
submittal shall be properly sealed by the licensed architect of record and
D-12
respective engineers. The Construction Documents shall be submitted to Hyatt at
the milestones indicated below. The Construction Documents will include at
minimum the following items, without limitation.
- Architectural Drawings
- Interior Design Drawings
- Landscape Drawings
- Pool / Water Feature Drawings (if applicable)
- Lighting Design Drawings
- MEP Drawings
- FLS Drawings
- IT Drawings
- AN Drawings
- Food Service Drawings
- Laundry Drawings
- All Value Engineering Exercises
- Schedules and Specifications Material Samples and Specifications,
including locations of all specified items
- Keyed Furnishings and Equipment Plans
- Furnishings and Equipment Samples and Specifications
- Exterior Signage Drawings
Incomplete or unsealed plans and specifications will not be reviewed. Hyatt will
issue a formal endorsement prior to starting construction. The required submittal
times are set forth below.
90° o Construction Documents Document Submittal
100% Construction Documents Document Submittal for Record
The Hotel Standard for construction material and equipment standards indicate a level of
construction, performance, fit, finish and appearance of the materials and equipment designated
to be installed in a Brand hotel. Products and materials manufactured by others that meet or
exceed the established criteria will be considered. All deviations from those products and
materials contained herein are to be reviewed by PFC's architect for the project who will verify,
in writing to Hyatt that the requested deviations meet or exceed those products and materials
noted herein within certain limitations. The Project Manager will forward the submittal along
with his verification letter to Hyatt for review and consideration. Hyatt will notify the Project
Manager whether or not the submittal is acceptable.
D-13
EXHIBIT E
SCHEDULE OF SPARE PARTS
The following "spare parts" shall be provided by Owner and delivered to Hyatt at the Hotel at
Owner's cost and expense before the Opening Date of the Hotel. The quantities listed are the
minimum acceptable. All quantities are to be rounded up to the next whole number.
Item
Typical Guest Room lockset
Typical Guest Room TV sets
Guest Room telephone sets
Sprinkler heads
Quantity
Minimum of 3 per 100 Guest Rooms
1 per 100 Guest Rooms
Minimum of 3 per 100 Guest Rooms
As per manufacturer recommendation
Complete new set of filter for all Air Handing Units (AHU) and Guestrooms Fan Coils (FCU)
Guest Room Furniture
Carpet, Guestrooms & Corridors:
Carpet, Public Areas:
Wallcoverings:
Key Card Energizer
Power outlets, Wall Switches,
Complete set incl. metal:'plastic plates
Shaving Outlets
CFL and LED Bulbs
Incandescent and Halogen Bulbs
Low Voltage Transformer for Lighting
Ballasts./Starters
Minimum 1 per 100 each type installed
5% for each type installed.
5% or 1 full pattern repeat of each type installed.
Minimum 5010 for each type of soft good material
installed.
3 per 100 installed (if present)
Minimum 5 per type installed
5 per 100 Guest Rooms (if present)
50 o each type installed. (Minimum of 10 of each type
installed to be provided.)
154 o each type installed. (Minimum of 15 of each type
installed to be provided.)
51o each type installed. (Ntinimum of 5 of each type
installed to be provided.)
5% each type installed. (Minimum of 5 of each type
installed to be provided.)
E-1
Shower Heads and Shower Hoses
Laundry and Dry Cleaning Equipment
Drive Belts for HVAC
Room Thermostat
(Guestrooms, public areas, BOH)
510 each type installed. (Minimum of 5 of each type
installed to be provided.)
As per manufacturer recommendation
1 exchange V-Belt per unit
21o each type installed. (Minimum of 2 of each type
installed to be provided.)
HVAC equipment: All systems utilizing replaceable media filters to be provided with one (1) complete
spare set of filters, in addition to the new filters to be installed on approval of each unit.
Chilled & Cold Water pumps. Enough packing to repack all pumps or 1 set of mechanical seals
Diesel Generator fuel oil storage tanks and onsite LPG stationary tanks (or LPG cylinders) to be re -filled
on approval of each unit
Plumbing systems: Cleaning, flushing of the systems and disinfecting required at commissioning. When
chemicals & or softener treatment plant installed, all chemicals and salt containers to be re -filled on
approval of each system
All remaining decorative, FF&E unused material (including without limitation to Carpet, Wall
Vinyl, Floor & Ceiling tiles, paint )
E-2
EXHIBIT F
DEVELOPMENT TIMETABLE
[See Attached]
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